December 9, 2010
Digest: A judge may not provide a character reference letter to the District Attorney at the request of a relative of the defendant, even if the judge would write solely in a non-judicial capacity, without revealing his/her judicial status. The judge may provide such a letter to the District Attorney only in response to the District Attorney’s direct request.
Rules: 22 NYCRR 100.2; 100.2(C); Opinions 06-156; 02-09; 89-73 (Vol. III); 89-04 (Vol. III).
A full-time judge asks whether he/she may write a letter to a District Attorney on behalf of a non-judge colleague’s relative, advising the District Attorney that the relative is “embarrassed” and “remorseful” about an incident the judge considers an “isolated event” and requesting that the District Attorney “give [the relative] whatever consideration you deem proper with a view of not encumbering [the relative’s] future.” The judge supervised the non-judge colleague when they both participated in an activity that is unrelated to the Court System. The judge proposes to write the letter on stationery that depicts his/her association with that activity, without any reference to his/her judicial position, and solely in his/her non-judicial supervisory role. The District Attorney did not ask the judge to provide the letter. Rather, the District Attorney asked the attorney representing the defendant to collect letters in the defendant’s support.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and, therefore, must not lend the prestige of judicial office to advance another’s private interests and must not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).
In prior opinions, the Committee has advised that these rules prohibit judges from providing character references, written or oral, on behalf of individuals who are the subject of proceedings involving alleged criminal or professional misconduct except when asked to do so directly by a tribunal, hearing officer or other governing body or official involved (see e.g. Opinions 06-156 [providing an overview of prior opinions]; 02-09 [a judge should not write a character reference for a friend who is a criminal defendant in a federal court located outside New York State]; 89-73 [Vol. III] [a judge should not, on his/her own initiative or at the request of a lawyer charged with criminal or professional misconduct, or at the request of that lawyer’s counsel, write a character reference letter on behalf of the lawyer, but may do so in response to an official inquiry]; 89-04 [Vol. III] [a judge should not write a character reference at the request of a criminal defendant]).
It is not sufficient that the individual involved or his/her legal representative requests the character reference. As this Committee has previously stated (see Opinion 89-73 [Vol. III]):
[J]ust as a judge may honor a subpoena to testify, a judge may respond to an official request from a court, district attorney, probation or parole department, presiding hearing officer, or disciplinary committee or its counsel, as appropriate, for the judge’s opinion as to the character of the lawyers. An official request received from such an appropriate agency, court or official for the judge’s opinion may be honored by the judge in the same way the judge would honor a subpoena.
In the present inquiry, that the judge would write the character reference letter without any reference to his/her judicial position, but solely in his/her non-judicial supervisory role, does not warrant a different result. Therefore, the inquiring judge may not provide the requested letter, except in response to a direct request from the District Attorney’s Office.